• Selected
• Entire List

Abstract:
Many lawsuits characterized as anti-obesity litigation have little to do with and little or no effect on public policy on obesity. This paper classifies the different types of obesity lawsuits that have been filed to date, with particular attention to Pelman v. McDonald's, and argues that these lawsuits are rent-seeking vehicles that are neither good law nor good public policy.

public health law, obesity, fast food

Abstract:
Thomas Geoghegan's See You in Court: How the Right Made America a Lawsuit Nation? takes the unusual tack of acknowledging that the litigation explosion is a bad development for America, but blaming it on policies of the right wing. Deregulation, deunionization, and the right's putative dismantling of the legal system and Rule of Law, Geoghegan argues, have driven Americans to the courts by cutting off alternative routes to social justice. Geoghegan effectively demonstrates that the Left should view skeptically the claims of the litigation lobby. But Geoghegan's attempt to blame conservatives for the increased role of litigation in society suffers from non sequiturs, self-contradictory arguments, and a general failure to engage his opponents' arguments fairly.

Section I of this review examines Geoghegan's thesis. It finds that Geoghegan defines and applies his core values - the Rule of Law; valuing democracy over decision-making by elites; recognizing the value of contracts - inconsistently and without providing any framework for determining when these principles should yield to other concerns. It further finds that Geoghegan provides no evidence for his claim that deunionization and deregulation caused the problems he describes in the legal system.

Section II describes and analyzes Geoghegan's most costly economic and factual errors. Many of his arguments are based on false premises or faulty economic reasoning. In particular, Geoghegan's lengthy indictment of the Federalist Society is central to his attack on the Right but is riddled with mistakes and unfair rhetoric.

Section III explores Geoghegan's more thoughtful critique of the role of litigation in American society. Though Geoghegan makes some inconsistent claims on this subject as well, he effectively critiques the Left's support of litigation as a means of achieving social change.

Geoghegan, tort reform, unionization, rule of law, Federalist Society, deregulation, medical malpractice, income mobility, income inequality, mandatory arbitration

Abstract:
This is my statement to the Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law and the Subcommittee on Constitution, Civil Rights, and Civil Liberties of the Committee on the Judiciary of the United States House of Representatives, April 1, 2008, regarding proposals to expand the September 11 Victim Compensation Fund of 2001.

The September 11 Victim Compensation Fund of 2001 (VCF) was a uniquely successful short-term administrative program to compensate victims of the September 11 terrorist attacks while limiting litigation against innocent third parties who had also been victimized by the attacks. Unfortunately, The James Zadroga 9/11 Health and Compensation Act of 2007 (H.R. 3543) in its current form fails to protect innocent third parties from unfair litigation, does not have the advantages that made the VCF successful, and magnifies the disadvantages and fairness problems of the VCF.

terrorism, ground zero, new york, causation, settlement, fraud, indemnification napoli

Abstract:
Recent empirical studies of Texas data by Hyman et al, Zeiler et al, and Silver et al suggest that insurance limits affect settlements of medical malpractice cases. Writing separately, Silver argues that insurance limits act as a de facto cap on malpractice payouts, that plaintiffs are being underpaid as a result, and that therefore legislative caps on damages are unnecessary. But this hypothesis is inconsistent with the data, which indicates that forty-seven percent of cases in which plaintiffs obtain verdicts above policy limits are subsequently settled above policy limits. We propose to reconcile the data by accounting for the effects that third-party causes of action for alleged bad-faith refusal to settle — known in Texas as a Stowers action — have on pretrial settlement negotiations. If an insurer in Texas is presented with a settlement offer within insurance limits, refuses to settle, and the plaintiff wins an award greater than insurance limits, the plaintiff is entitled to sue the insurer for the full damages amount, plus punitive damages, for refusal to settle. In this paper, we explore the game theory of medical malpractice settlement negotiations in the shadow of Stowers.

Using a Monte Carlo simulation of the “game,” we find: (1) plaintiffs have an incentive to make, and defendants have an incentive to accept, settlement offers at insurance limits; (2) a settlement at insurance limits may therefore sometimes reflect something other than the quality of the underlying medical malpractice case; (3) the possibility of Stowers awards increases expected returns to plaintiffs and disproportionately increases the settlement value of low-merit cases; (4) plaintiffs with weak cases are systematically overcompensated, while plaintiffs with strong cases are systematically under compensated; and (5) non-economics damages caps have the greatest effect on low-merit cases by reducing overcompensation, without affecting the highest-merit cases.

medical malpractice, tort reform, Stowers, bad faith, insurance, noneconomic damages caps, game theory, settlement

Abstract:
The controversy over whether and how to seat the Michigan and Florida delegations at the 2008 Democratic National Convention shows the danger of changing rules midstream and upsetting settled expectations. Reviver statutes not only obviate statutes of limitations, which are a critical aid to justice, by reviving claims that have expired or never existed, but they can also pose the danger of undoing the benefits of future prospective legislation. Because of the adverse effect on legal certainty, permitting such revivers acts to entrench the policy choices of legislatures that expand liability, when legislatures that restrict liability can get no such deference. In evaluating laws, the issue is not merely one of retroactivity, but of the importance of promoting legal certainty. For example, the FISA Amendments Act, S. 2248, while ostensibly acting retroactively to grant immunity to telecommunications companies that cooperated with the Bush administration's antiterror surveillance program, works to protect settled expectations.

tort reform, retroactivity, entrenchment, medical malpractice, child abuse

Abstract:
This is my statement to the Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law and the Subcommittee on Constitution, Civil Rights, and Civil Liberties of the Committee on the Judiciary of the United States House of Representatives, March 31, 2009, regarding proposals to expand the September 11 Victim Compensation Fund of 2001.

The September 11 Victim Compensation Fund of 2001 (VCF) was a uniquely successful short-term administrative program to compensate victims of the September 11 terrorist attacks while limiting litigation against innocent third parties who had also been victimized by the attacks. Unfortunately, The James Zadroga 9/11 Health and Compensation Act of 2009 (H.R. 847) in its current form, while an improvement over earlier versions of this legislation, fails to fully protect innocent third parties from unfair litigation, does not have many of the advantages that made the VCF successful, and magnifies the disadvantages and fairness problems of the VCF.

terrorism, ground zero, new york, causation, settlement, fraud, indemnification, napoli, napoli bern, mass tort